Citation Nr: 1707023
Decision Date: 03/08/17 Archive Date: 03/16/17
DOCKET NO. 11-27 642 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
THE ISSUES
1. Entitlement to service connection for the cause of the Veteran's death.
2. Entitlement to service connection for adenocarcinoma and squamous cell carcinoma of the lung, involving the bronchus and pulmonary artery, for accrued benefits purposes only.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Michael Wilson, Counsel
INTRODUCTION
The Veteran served on active duty from September 1966 to June 1970, including service during the Vietnam Era. He died on July [redacted], 2010. The appellant is the Veteran's surviving spouse.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.
The appellant testified at a hearing before the undersigned in October 2016. A hearing transcript is of record.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on her part.
REMAND
The appellant has contended, and the Veteran reported in his lifetime, that he was exposed to Agent Orange and asbestos as a result of service aboard a U.S. Navy vessel during the Vietnam Era.
With respect to the contended Agent Orange exposure, the appellant contended at her October 2016 Board hearing that the Veteran told her that he had been on shore in Vietnam, and that she believed evidence of this could be found in his service personnel records (SPRs). She also noted that she had possession of and was submitting to the Board the Veteran's original SPRs file in her possession. The appellant's representative indicated that the SPRs associated with the claims file represented only a portion of the Veteran's complete SPR file, and appeared to indicate that the SPRs to be submitted by the appellant contained performance reports and temporary duty orders. On the record, the representative agreed that he would have the personnel folder added to the claims file.
The SPRs the appellant presented at the hearing have not been associated with the claims file. Although an August 2009 response from the National Personnel Records Center (NPRC) appeared to indicate that all of the Veteran's available SPRs were being provided, the appellant must again be allowed to provide any additional SPRs in her possession.
With respect to the contention that the Veteran had been exposed to asbestos during service, the Board notes that the rating decisions and statement of the case (SOC) of record reveal that the AOJ only considered the Veteran's enlisted rating as an airman, as found on his DD Form 214, in contemplating his probability of asbestos exposure. Per guidelines set forth in VA's adjudication manual, M21-1MR, an airman rating is determined to have only a minimal probability of asbestos exposure. Review of the SPRs associated with the claims file, however, reveals that the Veteran had an enlistment rating as an aviation boatswain's mate, fuels (ABF), which appears to be consistent with his duties as reported in a March 2010 statement. Per the M21-1MR, servicemen listed with an ABF rating are considered as having probable exposure to asbestos. Given this evidence, further development must be completed, including the obtaining of a VA opinion with respect to the potential relationship between the Veteran's asbestos exposure to his lung cancer.
The appellant has provided several VA Forms 21-4142, giving VA authorization to obtain the Veteran's private treatment records from several different providers. Treatment records pertaining to earlier treatment dates were already of record for some of these providers; however, she has indicated that the Veteran received ongoing treatment through later dates for each provider. Thus far, it appears that the AOJ only made attempts to obtain records from one identified provider, James Cancer Center. While this provider initially indicated that it was unable to verify that the Veteran was treated on the dates requested, a subsequent letter following another attempt indicated that since the Veteran was deceased, additional documentation was required before records could be released. The AOJ did not make an attempt to provide the additional requested documentation. On remand, the AOJ must make attempts to obtain the identified treatment records from all providers identified by the appellant, to specifically include the Veteran's terminal treatment records, if any. See 38 C.F.R. § 3.159(c) (2016).
In her March 2011 notice of disagreement (NOD), the appellant indicated that she wished to appeal all claims denied in the February 2011 rating decision pertaining to her claim for Dependency and Indemnity Compensation (DIC). Her NOD, therefore, is also considered to be timely with respect to the claim for lung cancer, for accrued benefits purposes. Before the Board can consider that claim on appeal, however, it is required to remand it for issuance of an SOC. Cf. Manlincon v. West, 12 Vet. App. 238 (1999).
To the extent that the appellant's August 2010 claim for DIC could be treated as a request to be substituted as the claimant for the Veteran's pending service connection claim at the time of his death, the AOJ should take appropriate action on this request should she perfect an appeal to the accrued benefits claims.
Accordingly, the case is REMANDED for the following action:
1. The AOJ must send a letter to the appellant and her representative, informing them that the Veteran's service personnel file in her possession has not been added to the claims file and request that a complete copy of the Veteran's service personnel file in her possession be submitted to VA for inclusion in the claims file.
2. The AOJ must request a complete copy of the Veteran's SPRs from the NPRC.
3. The AOJ must ensure that is obtains proper authorization from the appellant, and then make appropriate attempts to obtain the Veteran's private treatment records from the following providers: J. Gutta, M.D., dated through June 2010; Joint Township District Memorial Hospital, dated through June 2010; St. Rita's Medical Center, dated through June 2010; Dr. R. Kakarla, from April 2010 to June 2010; V. Stegall, M.D., dated through June 2010; Dr. M. Arabpour, from January 2010 through April 2010; D. Powell, D.O., dated through April 2010; Ohio State University Hospital, from January 2010 to June 2010; and from James Cancer Center from January 2010 to June 2010 (including by ensuring that requested documentation is provided).
The AOJ must additionally ask the appellant to identify the Veteran's terminal treatment records and make attempts to obtain these records, if different from the records identified above.
4. Thereafter, the AOJ must ensure that it complies with M21-1MR procedures with respect to the development of the appellant's cause of death claim based on the Veteran's lung cancer as a result of claimed asbestos exposure; including due consideration that the Veteran served as an Aviation Boatswains Mate
5. The AOJ must then submit the claims folder to an appropriate oncology/respiratory disorders examiner to obtain a VA opinion with respect to the relationship between the Veteran's asbestos exposure and his lung cancer. The examiner must review the claims file in conjunction with the examination.
For purposes of this examination, the examiner must accept as fact that the Veteran's was exposed to asbestos during his active service.
The examiner must provide an opinion with respect to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's lung cancer, that ultimately resulted in his death, was incurred during or as a result of his active service, or as a result of an in-service disease, event, or injury, to include conceded asbestos exposure.
The examiner must provide reasons for all opinions, addressing the relevant medical and lay evidence. Absent such supporting rationale, the opinion will be deemed inadequate.
6. The AOJ must issue a statement of the case with respect to the issue of entitlement to service connection for adenocarcinoma and squamous cell carcinoma of the lung, involving the bronchus and pulmonary artery, for accrued benefits purposes only. This issue should not be certified or returned to the Board unless a timely substantive appeal is submitted.
If the appellant perfects an appeal with respect to the accrued benefits claim, the AOJ should also determine whether she may appropriately be substituted as the claimant in order to pursue the claim.
7. If the benefits sought on appeal are not granted in full, the AOJ must issue a supplemental statement of the case; and return the appeal to the Board, if otherwise in order.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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JAMES G. REINHART
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).